Tuesday, August 25, 2009

Lisa Falkenberg's Column Today

I think it is a very good column and makes a very good point, and I say that despite the fact that I like Judge Fine, and Judge Fine has never been anything but kind to me (both as a lawyer and now as a Judge).

The problem is that sometimes when shifting into a new job position, one needs to learn that the role you used to play isn't the one you will be playing any longer. I can certainly sympathize, having shifted from a prosecutor to a defense attorney right around the same time that Judge Fine switched from defense attorney to Judge. Although I've been criticized for blogging like a prosecutor, I think that all of my clients would gladly tell you that once we're in the courtroom, I am able to put my past career entirely behind me.

I'm there to represent them wholeheartedly.

If I didn't do that, I would have a very short career as a defense attorney ahead of me.

In the trial case mentioned by Lisa in her column, it would appear that Judge Fine was having some difficulty in putting his past career as a member of the Defense Bar behind him.

And as Lisa aptly points out, he just can't do that.

It doesn't mean that Judge Fine is a bad person. I can attest that he is a very good person who is truly trying to make a difference in the Criminal Justice System. Unfortunately, it sometimes results in some unorthodox methods that lead to complications that should not be coming from the Bench.

In this case, a line was crossed, and major credit should go to prosecutor Ed McClees for standing up for the Complainant in his case. Lisa described it:

The question drew an objection from Prosecutor Ed McClees, who questioned the relevance in a tense exchange.Objecting to a Judge (as opposed to Opposing Counsel) is a gutsy move, and not a lot of Prosecutors (or Defense Attorneys, for that matter) would have been brave enough to do so. A lawyer can quickly find himself in jail for objecting to a judge.

But Ed clearly understood the definition and parameters of his job, and he did the right thing despite potentially being held in contempt. In an Office that seems to rapidly be losing a lot of its Leadership, I think younger prosecutors can look to Ed as somebody who can lead them in the right direction and by example. It is very easy to stand up for something when you are surrounded by people. It's much more difficult to stand up alone at counsel table, which is exactly what Ed did.

Judge Fine was a very talented and brilliant Defense Attorney in the years he spent before becoming a Judge. I have no doubt that he has the potential to be a talented and brilliant Judge, as well. But I think he's going to have to let go of the past life to progress to the new one.

I have no doubt he would have passed along the same advice to me if I was still behaving like a prosecutor in his courtroom.

John Floyd has another take on this story on "Criminal Jusisdiction." The real issue seems to turn on how the questioning was done rather that whether it should have been done. There were some strange aspects to the woman's storey, Judge Fine, after questioning, concluded that it was reasonable, and he imposed an appropriate sentence. Unfortunately, Lisa's article was geared toward the emotional response she hoped to generate.

Anon 11:09, I respectfully disagree about whether or not Judge Fine was "brilliant" as a defense attorney. He was very intelligent in my opinion, and I think in the opinion of those he worked with -- Stanley Schneider, Troy McKinney, and Robb Fickman (who are all great legal minds as well. Well, maybe not Robb so much. Just kidding.)

I do agree with your assessment that what was done in this case was disgraceful, however.I'll work on my credibility.

Fine may be a fine guy, but as I expressed in my chronicle comment, he crossed the line. He needs to remember that he wasn't at the scene of this rape, didn't see the weapon, didn't hear the threats, and didn't experience the fear that woman did, and will never understand. Rape is the most demoralizing crime that can be committed by one who survives a crime and will always haunt them, causing crying episodes and nightmares for years. Unless he was deciding guilt, he had no right to victimize her again. And even then, better learn to do it with tact and compassion. That kind conduct of judges will discourage rape victims from coming forward for exactly the reason that it is so difficult for them to do so now. I realize that I wasn't in the courtroom, but as a prosecutor, I have had the same thing happen (by our now DA by the way). Good going Ed.

Setting aside the accusatory way he actually asked these questions (which Fine himself agrees was a very poor method), I have to disagree with you and Lisa on this one Murray.

The Judge's fact-finding job in sentencing is much different than his or her job during the first phase, and they have a duty to get the facts about both the offender's history AND the instant offense right before they pronounce sentence.

I'd also agree that the defense lawyer *should* have asked these questions during the sentencing (and well before that, too), but in the lawyer's failure, the Judge may have had no choice if he felt he didn't have all the relevant facts for sentencing. His ham-handed inquisitorial style was not judicious, but I think he was right to ask questions if he felt the inquiry aided his deliberations on sentencing.

Also, this is one of those that we probably all need more information on to understand what happened. A few selected quotes from the transcript are never very helpful.

My question is, if he felt the witness might have a credibility problem what happened at MDV and MJNOV time? It would seem that questions of credibility would have come up? Who was the defense lawyer? Did they fail to raise these obvious questions? Be nice to know.

Putting aside this credibility talk, it really does seem to be an issue of HOW Judge Fine questioned the witness, not whether it was proper to do so. Judges do need some flexibility in these areas, though questioning the victim about guilt issues at punishment does seem blatantly biased. Harris County Judges do exactly what Judge Fine ultimately suggested should have been done takes place all the time to the benefit of prosecutors. The judge calls both attorneys up and questions about predicates or evidentiary shortfalls, and the prosecutor asks questions to clear up those concerns. Judge Fine probably shoudln't have engaged in more direct and invasive questioning, but a question to clear something up or asking the attorneys to address certain issues isn't beyond the pale. I'm no fan of Judge Fine, and your point that he needs to get on with his new job is well taken. But the one-sided outrage isn't exactly fair.

1. Saying that some prosecutors hide or manufacture evidence, or look the other way when it's been proven time and time again that they do, or that they ignore good evidence while passing a case around instead of actually investigating the case to get the right guy;2. Saying that a criminal defendant has rights;3. Saying that any Democrat, or Lykos, did something right;4. Saying that JBH was the same or similar to Rosenthal, even though it's fairly certain that nothing changed when JBH left and many of the exonerations we're seeing nowadays pre-dated Rosenthal, as did the constant references to Canadians and similar nonsense;5. Any similar thing that intimates that the United States is governed by principles that many years ago were distilled into a written Constitution, and that it should apply equally and fairly to all citizens, and that the government should actually play by the rules...

Rage correction:1. Rage is in fact a projecting pissant who chronically laments over her inconsequential station in life. 2. Lykos is a great politician and therefore has achieved that goal "right". The fact that she is a horrible administrator, attorney and human being does not detract from her uncanny ability to fool the electorate. Rage is incorrect that the ADA posters on this blog will bawl me out for saying Lykos did something right. But we'll just have to see. 3. Rage never knew JBH.4. The balance of Rage's dribble is as significant as she is.

About Me

I practice criminal law and criminal law only. I've been involved in the criminal justice system since I was in college, and I've been practicing in Houston for over 18 years.
Most people never have to come down to the Harris County Criminal Justice Center unless they have jury duty. This blog is meant to give the Outsider an inside view.
These are just my opinions. The opinions of the Commenters are also just their opinions and I don't endorse them. But (within reason), I want everybody to be able to have a forum to say what they want to say.